Yesterday my Facebook feed erupted with posts by LDS friends expressing dismay over the Church’s announcement that it would reconsider its relationship with the BSA in light of the BSA’s announcement that it would now allow gay scoutmasters. After all, the BSA policy allows local troops to set their own guidelines regarding gay scoutmasters, and in any case the Church has no objection to gay scoutmasters, so long as they are living the law of chastity. Why the sharp response from the Church?
I have a theory about, this, but it is only a theory. In 2000, the U.S. Supreme Court decided a case called Boy Scouts v. Dale. Dale sued the BSA under a New Jersey anti-discrimination law, arguing that the BSA’s policy excluding him from being a scout leader because he was gay violated the law. The BSA argued that the application of the New Jersey law violated its rights of expressive association under the First Amendment. The BSA taught that boys should be “morally straight” and believed that this was inconsistent with homosexuality. For New Jersey to require the BSA to have a gay leader would therefore interfere with its message. The Supreme Court agreed and held the application of the New Jersey unconstitutional.
Now consider the new BSA policy, which is (1) the BSA no longer has any objection to gay scoutmasters; and (2) local BSA units are free not to have gay scoutmasters if they choose. A number of gay rights groups plan on challenging the new policy in court. I suspect that they will win in states such as New Jersey and California that have broad anti-discrimiantion laws. By dropping its objections to gay scoutmasters, the BSA can no longer claim that the application of anti-dsicrimination laws would interfere with its message regarding what counts as “morally straight.” The BSA would argue that it wants to allow local troops to make their own decision, but this in effect means that the BSA is licensing discrimination in violation of the law and without any reason protected by the First Amendment. For example, “attracting troop registration fees from religious groups that object to gay scoutmasters” is likely not constitutionally protected activity. I suspect that what Church leaders find dismaying about the BSA decision is that it is abandoning the position upon which its constitutional protection in Dale rested.
So now imagine that there is a LDS scout troop in California or New Jersey. The troop refuses to appoint sexually active gay scoutmasters. The LDS troops, along with the BSA, are sued. They first could argue that they are acting in accordance with BSA policies. This, however, would not be a legal defense. Indeed, gay rights groups would argue (quite plausibly) that the BSA policy is unlawful in California and New Jersey. Next, the LDS troop could argue that they don’t discriminate against homosexuals, only against sexual activity. The problem is that while the Church treats the distinction between orientation and activity as important, many (perhaps most) jurisdictions will reject this as a meaningless distinction. Finally, the LDS troop would argue that while the BSA has no opinion about homosexuality, the Church does. It regards gay sex as wrong, and requiring it to have sexually active gay leaders would interfere with it’s associational speech rights. “So what?” the gay rights plaintiffs could respond. “We aren’t suing the LDS Church for its practices, we are suing the BSA. You chose to associate with a group that doesn’t share your beliefs or teachings about homosexuality. That group must comply with anti-discrimination laws. If you don’t like it, then withdraw from the BSA. If you are going to be part of the BSA, however, your BSA group must — like all other BSA groups — comply with anti-discrimination laws.”
I don’t purport to know how this will play out legally, but the scenario laid out above doesn’t strike me as implausible. I have no insider information on the thinking at Church headquarters, but I think that it’s quite possible that something like this scenario is behind their testy and otherwise puzzling response to the BSA’s announcement. I think it very, very unlikely that the Church will change its moral stance on gay sex. Given that fact and the likelihood that the BSA policy will end up in court, I think that fighting this out in litigation simply isn’t worth it, especially if there is the possibility of having to pay damages and attorneys fees if you lose. I haven’t looked at the law on this closely, but I would be unsurprised if the gay-rights plaintiffs would win. Given that scouting is an awkward fit at best with the Church’s youth programs and at worst a needlessly complicated drain on the limited resources of wards and branches, getting out before the lawsuits are filed makes good sense to me.
Or at least that’s my theory.